Birmingham Hip Claims Impliedly, Expressly Preempted, Fla. Federal Judge Rules

MIAMI — A Florida federal judge has dismissed an action against Smith & Nephew Inc. involving its Birmingham Hip Resurfacing System, ruling that the claims are impliedly preempted because they allege violations of the Food and Drug Cosmetic Act, which conflicts “with the FDA’s responsibility to police fraud.”

On March 11, Judge Beth Bloom of the U.S. District Court for the Southern District of Florida further ruled that the plaintiff’s breach of contract and misrepresentation claims are expressly preempted because they do not allege violation of state regulations that parallel federal law.

Joseph Mink underwent hip replacement surgery on June …